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Judgment
Walter Salis Schwabe, K.C., C.J.—This is an appeal from an order made by Kumaraswami Sastri, J. under Order 37 of the Civil
Procedure Code, the suit being a suit on hundis given by the defendants to the plaintiffs or their predecessors. Long affidavits were put in on both
sides, and a large body of correspondence, by no means complete, is exhibited to those affidavits.
The question to be considered on applications under Order 37, Rule 3 is whether or not a triable issue is disclosed on affidavit or otherwise by
the defendant. By triable issue is meant a plea which is at least plausible. It is not enough for instance, to say, "" I have got a good defence but the
defendant must say what the defence is, and, as a rule, bring something before the Court to show that it is a bona fide defence and not a mere
attempt to gain time by getting leave to defend. There is not great difference between those cases where it is right to give judgment and those
where it is right to give leave to de-lend on paying the amount into Court or on giving security; but there are cases in which the defendant sets up
some sort of defence, which does not bear the stamp of truth, as for instance, when it is contradicted by documents, when the Court may well say
that he should only be allowed to come and put that defence before the Court, if he is prepared to give security for the amount claimed. I think the
principle applicable here has been laid down clearly in similar application under Order 14, Rule 1 of the Rules of the Supreme Court in England by
the House of Lords in Jacobs v. Booths Distillery Co. 5 LT 262, Codd v. Delap 92 LT 510 and Jones v. Stone (1894) AC 122.
In this case 1 do not think that the learned judge turned his mind to the consideration of the question whether or not there is a triable issue in this
case. He seems to have taken the view that there are hundis on the face of which prima facie the defendants would be liable, and therefore they
must as a condition of leave to defend pay the money into Court or give security. We have before us the same materials as he had, and on a study
of the correspondence, which in these matters is always the most important thing to look at, explained as it is by affidavits on both sides, it seems
to me that the relationship between the parties had been so complicated, that there may well have been transactions, which are referred to in
certain of the letters, in which the plaintiff''s predecessor and the defendants were signing bills and hundis for each other''s accommodation. There is
an absence of books on the part of the plaintiffs. There is on the other hand a statement on oath that the defendant''s books, which of course could
have been made available by the plaintiffs if they had so chosen show that the amounts sued for in this suit were not, as between the plaintiffs and
the defendants, due from the defendants to the plaintiffs. I think it is quite impossible on the facts of this case to say that there is not a triable issue.
We express no sort of view as to whether the defence is good or bad that will be a matter for the trial Judge. But having come to the conclusion
that there is a triable issue in this case, it will not be right to say that, as condition of being heard at all, these defendants should find money or
security, because, if they are not able to do so it will be depriving them altogether of a right that they have got of having their case tried. It is only in
exceptional cases that the exceptional provisions of Order 37 come into operation to the extent of depriving a man of this right. In cases of this sort
the Court has to find if there is any plausible defence, and where there is one, effect must be given to that fact and leave to defend should be
granted, and it should be made conditional only in cases, where there appears to be so grave a suspicion that the Court comes to the conclusion
that the defence is put in only in order to obtain further time.
In these circumstances this appeal must be allowed and leave to defend the suit must be granted. I think the proper order in this case is that the
costs of the original application and of this appeal shall be costs in the cause. Written statement in 14 days.
Ramesam, J.
I agree.